Gondolatok az uniós jog elsőbbsége és a tagállamok nemzeti identitása közötti kapcsolatról az EUB ún. „Pancharevo” ítéletének tükrében

Abstract

The issue of the rights of same-sex couples to get married and to adopt can be seen as a topical issue in everyday life and in politics. It is also an issue that is constantly being addressed in practice by national supreme/constitutional such as the European Court of Human Rights and the Court of Justice of the European Union as well. This paper analyses the relevant jurisprudence of the above-mentioned two judicial fora in the light of the CJEU’s so-called ‘Pancharevo-judgment’ delivered in December 2021. In the said case, the Court of Justice had to decide whether the unconditional prevalence of the right of free movement of persons under the Founding Treaties, over the traditional concept of the family in a given country, would be contrary to the national identity of the Member State. These issues are of particular importance because, if the Member State is ultimately forced to functionally yield to the primacy of EU law in a multitude of areas, the question arises as to whether the Member State will have any room for manoeuvre left despite the fact that its Constitution remains otherwise unchanged? Although the Court has stressed the margin of manoeuvre that Member States have in this area, it has ruled that EU law must prevail. The conflict between the primacy of EU law and the national identities of the Member States is seen to be resolved by the so-called functional approach principle, which will be explained in detail in this paper.